52 Va. J. Int'l L. 483 (2011-2012)
Unwilling or Unable: Toward a Normative Framework for Extraterritorial Self-Defense

handle is hein.journals/vajint52 and id is 493 raw text is: Unwilling or Unable: Toward a Normative
Framework for Extraterritorial Self-Defense
ASHLEY S. DEEKS *
Nonstate actors, including terrorist groups, regulary launch attacks against
states, often from within the territory of another state. When a victim state seeks
to respond with force to such attacks, it must decide whether to use force on the
territory of a state with which it may not be in conflict. International law
traditionaly requires the victim state to assess whether the territorial state is
unwilling or unable to suppress the threat itself Only f the territorial state is
unwilling or unable to do so may the victim state lawfully use force. Yet there
has been virtually no discussion, either by states or scholars, of what that test
requires. The test's lack of content undercuts its legitimacy and suggests that it is
not currently imposing effective limits on the use of force by states at a time when
transnational armed violence is pervasive.
This Article provides the first sustained descriptive and normative analysis of
the test. Descriptively, it explains how the unwilling or unable test arises in
international law as part of a state's inquiry into whether it is necessary to use
force in response to an armed attack. It identifies the test's deep roots in
neutrality law while simultaneously illustrating the lack ofguidance about what
inquiries a victim state must undertake when assessing whether another state is
unwilling or unable to address a particular threat. Normatively, the Article
plumbs two centuries of state practice to propose a core set of substantive and
proceduralfactors that should inform the unwilling or unable inquiry. It then
applies those factors to a real-world example - Colombia's use of force in
Ecuador in 2008 against the Revolutionary Armed Forces of Colombia - to
explore how the use of these factors would affect the involved states' decision-
making and the evaluation by other states of the action's legality. The Article
argues that the use of these factors would improve the quality of state decision-
* Academic Fellow, Columbia Law School. The author thanks Laurie Blank, Erin Delaney, Ariela
Dubler, Monica Hakimi, Thomas Heinemann, Rebecca Ingber, Marty Lederman, Henry Monaghan,
Trevor Morrison, Anthony O'Rourke, Vijay Padmanabhan, Paul Stephan, Matthew Waxman, and
participants in several Columbia Law School workshops for their helpful comments.

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